Russell v. Spaulding

• Decision Date: 10 March 1921
• Citation: 238 Mass. 206
• Parties: MAURICE L. RUSSELL v. HERMAN G. SPAULDING.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

238 Mass. 206

MAURICE L. RUSSELL v. HERMAN G. SPAULDING.

Supreme Judicial Court of Massachusetts, Middlesex.

March 10, 1921

January 19, 1921.

Present: RUGG, C.

J., BRALEY, CROSBY PIERCE, & JENNEY, JJ.

Negligence Employer's liability, In use of carbonator, Res ipsa loquitur. Evidence, Matter of common knowledge, Presumptions and burden of proof.

At the trial of an action at common law by an employee against his employer, the proprietor of a drug store, for personal injuries received when the plaintiff, left in charge of the defendant's store, was attempting to charge a soda fountain with a carbonator and the carbonator exploded, it appeared that the carbonator was defective in that its pressure gauge was out of order and that, due to that fact, the plaintiff treated the carbonator as though it was nearly empty, when it was not, and the explosion resulted. It further appeared that the plaintiff knew the apparatus and had operated it before. There was no evidence that he was ignorant of the work which he was to perform, of the method of performance or of the dangers incidental thereto. While it appeared that, on the day of the accident, the defendant had left the store in charge of the plaintiff and had said nothing as to the condition of the carbonator or the tank, there was no evidence that the defendant knew of any defect in the apparatus or that he had not warned or instructed the plaintiff as to its use. The apparatus was about eight years old. The defendant testified that he had been "cautioned by the soda fountain people" not to shake the tank to mix the gas with the water while he was letting the gas into it. Held, that

(1) Evidence merely of the age of the apparatus, in the absence of evidence as to the effect of time and use, would not warrant a finding that the defendant was negligent;

(2) The period that the apparatus could be used without repair and renewal was not a matter of common knowledge;

(3) The doctrine, res ipsa loquitur, did not apply; (4) A finding for the plaintiff was not warranted.

TORT for personal injuries received by the plaintiff on April 19, 1917, while in the employ of the defendant, by reason of the explosion of a carbonator, which was kept by the defendant for charging a soda fountain and which, it was alleged, "was negligently suffered by the defendant to be and remain out of repair," the plaintiff alleging further that the defendant knew of the defective condition of the carbonator and "utterly neglected to warn the plaintiff of the risk of accident through" its operation. Writ dated August 25, 1917.

In the Superior Court, the action was tried before J. F. Brown, J. Material evidence is described in the opinion. At the close of the evidence introduced on behalf of the plaintiff, the defendant rested and moved that a verdict be ordered in his favor. The motion was denied. The jury found for the plaintiff in the sum of $2,500; and the defendant alleged exceptions.

P. B. Buzzell, for the defendant. H. H. Hale, for the plaintiff.

JENNEY, J. The only question is, whether there was evidence justifying the submission of the case to the jury.

The plaintiff was injured, while temporarily in the defendant's employ, by the explosion of a soda tank. He was employed as a drug clerk in another store, but on the day of the accident went to the defendant's place of business and took charge of it, in the defendant's absence for the afternoon. In drawing soda, he noticed that the fountain needed re-charging. His story of the accident was as follows: "I went to the basement and filled the tank ready to charge it -- started to turn in the gas, discovered that the wrench was not there with which to do it so I went upstairs to the back room and got the wrench . . . went back down to the basement and started to let [in] the gas. It consisted of a simple affair it was a pipe which ran from the gas cylinder down to the tank. Then it worked with a valve, with a wrench, which turned on and off in order to mix the soda gas with the water. There was an indicator on there which was supposed to tell the pressure we were getting. As I turned it on and off that moved very little -- perhaps two or three pounds -- and I got the impression -- I had had it do the same thing before -- that there was very little gas in the cylinder. So then I opened up the valve and let it in without fear, thinking there was not much there in the tank. . . . Soon an explosion followed, the tank burst and something hit my arm and hand." He further testified that he had worked in the store and used the carbonator before, as his previous testimony clearly indicated; that the carbonator was an old one and that the valve had always worked properly before; that the tanks were charged with about a hundred and fifty pounds pressure; that his employer did not state anything as to the condition of the carbonator before he left on the day of the accident; and that the charging of the tank was one of his (the plaintiff's) duties.

The defendant called as a witness by the plaintiff, testified that he had in the cellar of his store a tube of gas of a size sufficient to charge about seven tanks of soda water and with a pressure thereon of a hundred and sixty to a hundred and sixty-five pounds. His description of the method of charging the tank was as follows: "there was a tube and that was connected with the tank of soda. And I filled up the tank with ten gallons of plain water . . . then I attached this tube to the gas and turned on the gas and put in a little, and I had a...